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KHUDAIJA BIBI versus D.D.C. & OTHERS

High Court of Judicature at Allahabad

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Khudaija Bibi v. D.D.C. & Others - WRIT - B No. 7838 of 1979 [2006] RD-AH 11252 (11 July 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   Judgment Reserved on 25.5.2006

  Judgment Delivered on 10.7.2006

                           (Reserved)

Civil Misc. Writ Petition No. 7838 of 1979

Smt Khudaija Bibi Versus Deputy Director of Consolidation, Allahabad and others.

Hon'ble S.U.Khan J

Original Petitioner No.1 Smt Khudaija Bibi died during pendency of the writ petition.  There is serious dispute in respect of devolution of her interest. One impleadment application and one substitution application have been filed. One application was filed by Akhtar Hussain and the other on behalf of one Mohd Naushey and another. On 29.4.2005 application of Mohd Naushey and another was allowed. They have sought substitution on the basis of inheritance. Through order dated 16.9.2005 (on the order sheet), I passed the following order:

"It appears that there is serious dispute in between Akhtar Hussain and Mohd Naushey and another regarding property of petitioner No.1.

Without expressing any opinion regarding right of either of these parties to have the property left behind by petitioner No.1, it is directed that along with Mohd Naushey and another name of Akhtar Hussain shall also be substituted as one of the legal representatives of petitioner No.1. The question  as to whether Akhtar Hussain is entitled to the property left behind by petitioner No.1 or Mohd Naushey and another will be decided in the final judgment, if considered necessary.

Learned counsel for both the parties have also stated that already litigation in between the two claimants is going on before the different courts."

At the time of final hearing of the writ petition on merit on 24 and 25.5.2006, learned counsel for both the claimants to the estate left behind by petitioner No.1 were heard in support of the writ petition.

The question of succession to the property left behind by petitioner No.1 is left open for being decided either in the litigation in that regard which may be pending or in any subsequent litigation in respect thereof. I do not propose to decide the said question in this writ petition.

As far as merit of the writ petition is concerned, the dispute in the instant writ petition is confined only to the agricultural property comprised in Khata No. 31. In respect of other Khatas, matter has already been finalized by the Consolidation Courts and the said orders are not under challenge either in this writ petition or in any other writ petition.

In the basic year as well as at the time of Zamindari Abolition, property in dispute was entered in the revenue records as Sirdari of the petitioners. In the revenue records of 1898 A.D, land in dispute was entered as Sir and Khudkast of Ikram Hussain and after the death of Ikram Hussain, it was entered as Sir of Razi Uddin his real brother. Date of death of Ikram Hussain is not mentioned any where however it appears that he died in early 20th Century.

It is undisputed that property in dispute was initially Zamindari property of one Ikram Hussain son of Abdul Ghani. Pedigree given in the judgment of Consolidation Officer (C.O) and Settlement Officer Consolidation (S.O.C) is slightly confusing. However this much is quite clear and undisputed that Ikram Hussain had one brother Razi Uddin (both being sons of Abdul Ghani). Razi Uddin had one son Ziaul Hasan and two daughters Azizun Nisa (respondent No.4) and another.  Original petitioner No.1 was widow of Ziaul Hasan and the couple had three daughters Rashida Bibi (petitioner No.2), Tahira Bibi (petitioner No.3) and Fatima Bibi (petitioner No.4).

Ikram Hussain had no issue. It also appears that his widow Smt Aalia Bibi remarried with her Dewar i.e Razi Uddin. It also appears that Abdul Ghani father of Ikram Hussain had three daughters also by the names of Moharram Bibi, Mussammat Mainda Bibi and Mussammat Mukarrama Bibi. Apart from that, it appears that Abdul Ghani had one more son Abdul Razzak. It also appears that Abdul Razzak had died before Ikram Hussain. Some of the contesting parties appear to be the descendants of the aforesaid three daughters of Abdul Ghani and Abdul Razzak son of Abdul Ghani.

After the start of consolidation proceedings objections were filed before C.O Soraon, district Allahabad in the form of case No. 8371, 8381 and 8386 of 1975-76. C.O held that even though after the death of Ikram Hussain property in dispute was entered as Sir of his brother Razi Uddin alone however, apart from Razi Uddin the other heirs of Ikram Hussain also became Zamindar of the property in dispute irrespective of the fact that apart from Razi Uddin no other person was recorded in the revenue records. According to the C.O, apart from Razi Uddin the following persons also became Zamindar on the basis of inheritance;

1. Musammat Aalia Bibi

2. Moharram Bibi

3. Mussammat Mainda Bibi

4. Mussammat Mukarrama Bibi.

C.O drew an artificial distinction. He held that all the aforesaid heirs of Ikram Hussain became Zamindar but only Razi Uddin became Sir holder of the land in dispute. This distinction is not warranted under law. Before Zamindari Abolition, Zamindar was the owner of the property and if several persons were Zamindas then either they all become Sir or Khudkast holder or none. It was not permissible under law that out of the several Zamindar, one might become Sirdar or Khudkast holder. C.O ultimately concluded that only Razi Uddin and after his death only Ziaul Hasan son of Razi Uddin was recorded as Sir holder of the land in dispute hence only Ziaul Hasan became Bhumidhar/ Sirdar of the land in dispute on the enforcement of U.P.Z.A.L.R Act. Ultimately matter was decided in favour of the petitioners by C.O through judgment and order dated 7.12.1976 and in respect of Khata No. 31 basic year entries were maintained and shares of petitioners were demarcated.

Against the said judgment and order Appeal No. 1758 was filed by Azizun Nisa and others before Assistant Settlement Officer Consolidation (ASOC) Karchana, Allahabad which was allowed on 27.6.1977. Against the said order Revision No. 235/615 was filed which was dismissed by D.D.C Allahabad on 1.5.1978, hence this writ petition.

ASOC in its judgment mentioned altogether distinct line of inheritance. ASOC mentioned that at the time of death of Ikram Hussain his father Abdul Ghani was alive hence Abdul Ghani inherited the property to the extent of half share and ¼ share was inherited by Smt Aalia Bibi widow of Ikram Hussain and ¼ went to Smt Nura Bibi. [It is not clear that who was Smt Nura Bibi. It appears that either she was wife of Abdul Ghani or second widow of Ikram Hussain (apart from Smt Aalia Bibi)]. S.O.C further held that after the death of Abdul Ghani following persons inherited his property: -

1. Nura Bibi,

2. Abdul Razzak

3. Razi Uddin and

4. Mussammat Mukarrama Bibi.

According to S.O.C half share of Abdul Ghani devolved upon these persons.

Appellate court held that C.O committed an error of law in holding that prior to Abolition of Zamindari, Sir land was a type of tenancy. Appellate court held that Sir was such land of Zamindar, which was in his actual occupation and not in tenancy occupation of any other person.  To this extent appellate court was right.

However, most important question is that in case after the death of Ikram Hussain apart from Razi Uddin other persons also inherited the property left behind by him then what they were doing for about 70 years i.e from the date of death of Ikram Hussain till filing of objections before C.O in 1975-76. If the statement of fact that at the time of death of Ikram Hussain his father Abdul Ghani was alive mentioned in the judgment of ASOC is correct then the entire case of the respondents based upon joint rights with Ikram Hussain fails. Under Muslim Law, if father of a person is alive at the time of his death then brothers of the deceased do not inherit the property. The last two lines of Mulla's Principles of Mohammedan Law, 19th Edition of 1990, 10th reprint of 2000 given under section 65 on page 58 are quoted below:

" whoever is related to the deceased through any person shall not inherit while that person is living (Sir.27) Thus the father excludes brothers and sisters."

In view of this, Razi Uddin could not inherit any  share in the property of his brother Ikram Hussain if their father Abdul Ghani was alive at the time of death of Ikram Hussain. The entry in his name clearly proves his exclusive right. He not being the co-sharer, the theory of entry of a co-sharer in the representative capacity and on behalf of other co-sharers cannot be pressed into service. His possession of the Zamindari property would therefore be clearly adverse to all the sharers and 70 years is more than the required period of maturing the title through adverse possession. The name of Abdul Ghani or any other successor of Ikram Hussain apart from Razi Uddin was never recorded in the revenue records.

However, if the position was that at the time of death of Ikram Hussain his father Abdul Ghani had already died still the claim of other co-sharers of Ikram Hussain would be barred on the principle of estoppel etc.  In Jagdeo Vs. D.D.C, Writ Petition No. 1332 of 1976 decided by me on 3.7.2006, I have held that revenue entries standing since much before Zamindari Abolition can not be sought to be reversed on the basis of joint tenancy and entry of name in the representative capacity. After the death of Ikram Hussain the name of Razi Uddin was entered over the property in dispute and after his death name of his son Ziaul Hasan was entered in the revenue records. This position continued till Zamindari Abolition. In the aforesaid judgment of Jagdeo, I have held that U.P.Z.A.L.R Act created new rights and old rights as well as old disputes and claims came to an end.

It appears that for a brief period the names of some of the respondents were recorded in the revenue records however on the application of petitioners under section 33/39 U.P.L.R Act, the S.D.O passed an order for expunging their names. Thereafter no steps were taken by the contesting respondents for getting their names reentered in the revenue records. The said case regarding correction of revenue records was instituted in the year 1945 in the form of case No. 13 of 1945. It was stated therein that Patwari had illegally entered the name of some of the contesting respondents in the revenue records. The said case was allowed on 23.3.1949.

Learned counsel for the respondents has also argued that before the C.O Smt Khudaija Bibi admitted in her written statement/ objection dated 7.9.1975 in para 3 that contesting respondents had share in the property in dispute however they i.e. Azizun Nisa, Ummatun Nisa and Alia Bibi orally gifted their shares in favour of Ziaul Hasan hence objections of contesting respondents were liable to be accepted on the basis of admission alone as oral gift was not proved. As far as admission in pleading is concerned either it may be taken as a whole or not at all. It cannot be bifurcated. If respondents are not ready to accept the admission/ assertion of the petitioners that the other co-sharers had gifted their shares in favour of Razi Uddin then they cannot take any advantage of admission that the aforesaid three ladies had shares in the property in dispute.

In view of the above, I find that judgment and order passed by the appellate court and revisional are patently erroneous in law and liable to be set-aside. Judgment of C.O is to be maintained even though on different grounds.

Accordingly writ petition is allowed. Judgment and order passed by the appellate court (ASOC) and Revisional Court (D.D.C) are set-aside and judgment of the trial court (C.O) is restored.

10.7.2006

Waqar


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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